JUDGMENT
Viswanatha Sastry, J.
1. Defendants 1 to 11 are the appellants in this second appeal. The plaintiff sued for a declaration of his right of way along the pathway indicated ABCDEFGHJKL in the plaint plan for his cattle, carts and men to go to his land and for an injunction restraining the defendants from interfering with his user of the pathway and for the restoration of the pathway at HJ to its original condition. The suit has been decreed by the Courts below on the finding that the plaintiff was entitled to the right of way claimed by him and that the obstructions and alterations caused by the defendants in the pathway so as to interfere with the plaintiff’s exercise of his right of way were unjustified. There was a decree for a prohibitive and a mandatory injunction in favour of the plaintiff. There is ample evidence in the case to support the finding of the lower appellate Court that the pathway in question was a pathway over which the plaintiff had the right claimed by him in his plaint. The mere fact that the way is shown as a pathway in respect of a considerable portion of the track is not conclusive of the matter and the evidence of the Tahsildar and the Revenue Inspector and the other witnesses is to the effect that there was a good cart track with rows of trees standing on each side of it and therefore the plaintiff must be held to have established his claim to use the pathway as a cart track.
2. Mr. Narayanaswami Aiyar argues that this issue is open to consideration by me in this second appeal for the reason that there was a reference to arbitration of the disputes between the parties during the pendency of the suit in the trial Court and an award passed by the arbitrators which is marked as Ex. p. 16. His contention is that the reference pending the suit though not made at the instance of the Court or with its knowledge, still, constituted an agreement between the parties to abide by the decision of the arbitrators and the award of the arbitrators operates as an adjustment or compromise of the suit within the meaning of Order 23, Rule 3, Civil P. C. Before the enactment of the Arbitration Act of 1940, it was held by a Full Bench of this Court in Subbaraju v. Venkataramaraju, 51 Mad. 800 : (A. I. R. (15) 1928 Mad. 1025 F. B.) that where the parties to a pending suit have referred their difference to arbitration without an order of the Court and an award is made, a decree in terms of the award could be passed by the Court under Order 23, Rule 3, Civil P. C. even though the parties do not accept the award as binding upon them. This decision has been followed and applied to a similar case even after the enactment of the Arbitration Act of 1940 by a Division Bench of this Court in Arumuga v. Balasubramania, I. L. B. (1946) Mad. 39 : (A. I. R. (32) 1945 Mad 294). The learned Judges construed the language, of Section 47, proviso, Arbitration Act, so as to make it applicable to a case where there has been a mere agreement to be bound by a future award and an award is given on such a reference. They held that Order 23, Rule 3 was not confined to a case where after the award is made, the parties consent to its being filed as a compromise or adjustment of the pending suit and that Section 47, proviso also did not bear that interpretation. Sitting singly I am bound by this decision though I consider that it is probable that the legislature intended that a private reference to arbitration in a pending suit without the knowledge of the Court and without its direction which results in an award should not be made a rule of Court unless all the parties interested in the suit consent to the award being filed into Court as a compromise or adjustment of the suit. Indeed the Calcutta High Court had consistently taken that view before the Arbitration Act of 1940 and Section 47, proviso appears to confirm that view. The further question argued in the case whether a reference to arbitration in a pending suit is governed exclusively by chap. IV, Arbitration Act, or whether chap. II of the Act which deals with arbitrations without the intervention of a Court would also apply to references to arbitration in a pending suit does not fall for decision in this case. But my view is that Chap. IV is comprehensive and complete land covers all references to arbitrations in pending suits and chap. II does not apply to such references by its own force. The provision in Chap. IV, Section 25 of the Act, applying the other provisions of the Act to arbitrations in finding suits, would be unnecessary if Chap. IV were not is self-contained provision regulating references to arbitration in pending suits.
3. The point for consideration now is whether there has been an adjustment or compromise of the suit as a result of the award passed by the arbitrators. The award is not a complete decision of all the matters in controversy between the parties and is further vague and indefinite with respact to the rights claimed by the plaintiff and with reference to the manner in which those rights should be exercised. Having considered its provisions, I am of the opinion, it has not decided all the matters in controversy between the parties. I do not, of course, rely upon the statement of the arbitrators themselves in Exs. P-15 and P. 15 (a) as to what was in their mind when they passed their award but I arrive at this conclusion on an interpretation of the pleadings in the case and the award passed by the arbitrators.
4. I therefore consider that the decree of the lower appellate Court is correct and that this second appeal should be dismissed with costs. (Leave refused).
